State v. Safadago

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2022
07:41 AM
Dkt. 184 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CODY SAFADAGO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CR. NO. 5CPC-17-172)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant, Cody Safadago (Safadago) appeals
from the Judgment of Conviction and Sentence; Notice of Entry,
filed on January 27, 2020 by the Circuit Court of the Fifth
Circuit (Circuit Court).1 The indictment charged Safadago with a
number of offenses stemming from a fatal traffic collision
involving a white Mazda sedan driven by decedent Kayla Huddy-Lemn
(Decedent), and a white Nissan truck, allegedly operated by
Safadago, near the intersection of Kapa#a Bypass Road on Kuhio
Highway, that occurred at around 10:00 p.m. on April 27, 2017.
Following a jury trial, Safadago was convicted of
Manslaughter, Accidents Involving Death or Serious Bodily Injury
(Leaving Scene of Accident), Unauthorized Control of a Propelled
Vehicle (UCPV), Resisting Arrest, Operating a Vehicle Under the
Influence of an Intoxicant, other driving-related offenses, and
driving without a valid license. The jury found Safadago
eligible for extended term sentencing. Safadago was sentenced to

1
The Honorable Randal G.B. Valenciano presided.
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an extended life term of imprisonment with the possibility of
parole for Manslaughter, an extended concurrent 20-year term of
imprisonment for Leaving Scene of Accident, and concurrent terms
of imprisonment and jail for all other counts except for UCPV,
for which the ten-year extended term of imprisonment was to run
consecutively. Safadago timely appealed.2
On appeal, Safadago contends that the Circuit Court
erred in denying (1) his Motion to Suppress All Evidence and
Statements Based Upon Lack of Probable Cause to Arrest Defendant,
filed on October 23, 2017 (First Motion to Suppress); (2) his
Motion to Suppress Evidence Seized Pursuant to Search Warrants,
Based Upon a Lack of Probable Cause, filed on October 23, 2017
(Second Motion to Suppress); (3) his two motions to dismiss the
indictment: the August 4, 2017 Motion to Dismiss Grand Jury
Indictment (First Motion to Dismiss Indictment), and the October
23, 2017 Motion to Dismiss Grand Jury Indictment Due to
Misleading Testimony, and/or Failure to Present Clearly
Exculpatory Evidence (Second Motion to Dismiss Indictment).3
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we resolve Safadago's
contentions as follows, and affirm.

2
A March 5, 2020 cross-appeal filed by the State was dismissed on
August 4, 2020.
3
Safadago does not identify in his three points of error where in
the record the alleged errors occurred, nor does he provide a quotation of the
findings or conclusions alleged as error, nor did he append the Circuit
Court's orders to his brief, in compliance with Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4)(ii) and (4)(C). However, as this required
information missing from the point of error section appears in Safadago's
Statement of the Case, we will consider his points of error. Marvin v.
Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (internal citations,
quotation marks, brackets, ellipses omitted) ("[N]oncompliance with Rule 28
does not always result in dismissal of the claims, and this court has
consistently adhered to the policy of affording litigants the opportunity to
have their cases heard on the merits, where possible. This is particularly so
where the remaining sections of the brief provide the necessary information to
identify the party's argument.").

Safadago did not file a Reply Brief, and did not file a notice
that a reply brief would not be filed, pursuant to HRAP Rule 28(d). See HRAP
Rule 28(d) ("If no reply brief is to be filed, the appellant shall file a
notification with the appellate clerk, with service upon all parties, prior to
the expiration of the time for filing the reply brief.").

Safadago's counsel is cautioned to comply with HRAP requirements.

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The First Motion to Suppress was properly denied.
Safadago contends that the Circuit Court erred in
denying Safadago's First Motion to Suppress. He argues that
Kaua#i Police Department (KPD) Officer Michael Buratti's (Officer
Buratti) seizure of Safadago was unconstitutional because Officer
Buratti did not have a reasonable suspicion to detain Safadago
pursuant to State v. Tominiko, 126 Hawai#i 68, 77, 266 P.3d 1122,
1131 (2011).4 Safadago argues that Tominiko is identical to
Safadago's case in that: Safadago was already walking away when
Officer Buratti called out to him, Safadago began running,
Officer Buratti gave chase, and Safadago slowed to walk as
Officer Buratti asked Safadago if it was his truck. This
contention lacks merit.
The following record pertinent to both the First and
Second Motions to Suppress is from the hearing on the motions
held on December 12, 2017 and January 19, 2018, and the Circuit
Court's identical, unchallenged findings of fact in the Findings
of Fact and Conclusions of Law (FOFs/COLs) in the order denying
the First Motion to Suppress and the order denying the Second
Motion to Suppress. See State v. Rodrigues, 145 Hawai#i 487,
497, 454 P.3d 428, 438 (2019) (citation omitted) ("It is well-

4
In Tominiko, a police officer testified that he was dispatched to
investigate a tip that a group of people were arguing at an intersection. 126
Hawai#i at 72, 266 P.3d at 1126. When the officer arrived to the
intersection, fifteen to twenty people were drinking beer or soda and quickly
dispersed. Id. As the defendant walked to his car, the officer asked for his
identification to investigate what was going on at the intersection. Id. The
defendant mumbled something, got into his car and the officer told the
defendant to stop; the defendant drove off and the officer chased after him,
telling him to stop. Id. A vehicle coming in the opposite direction forced
the defendant to stop. Id. The officer then saw empty beer bottles in the
car, and the defendant was charged with operating a vehicle under the
influence of an intoxicant. Id. The Hawai#i Supreme Court held that the
officer did not have a reasonable suspicion to arrest the defendant because
the officer did not have a particularized and objective basis for suspecting
that the defendant had committed, or was about to commit, a crime. Id. at 78,
266 P.3d at 1132. The officer did not recall seeing the defendant drinking
beer or holding a beer bottle in his hand when the officer approached, and did
not see the defendant fighting or talking loud. Id. The officer did not see
the defendant or anyone in the group fighting or arguing. Id. The
defendant's walk to his car also did not raise reasonable suspicion that he
committed a crime. Id. at 79, 266 P.3d at 1133. Thus, based on the totality
of the circumstances, the supreme court held that the officer did not have a
reasonable suspicion that the defendant committed a crime. Id.

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established that . . . unchallenged findings of fact are binding
on appellate courts.").
On April 27, 2017, at approximately 10:45 p.m., a
traffic collision occurred between a stolen Nissan truck and a
Mazda four door car. FOF 1. The collision happened just North
of Kintaro's in Kapa#a, Hawai#i. FOF 2. The driver of the Mazda,
Kayla Huddy-Lemn, died shortly after the collision but before
being extricated from the vehicle. FOF 3. When Officer Buratti
arrived on scene he went to the location of the Nissan truck.
FOF 4. Officer Buratti heard a loud verbal argument in the
parking lot area of JC's Flower, a retail establishment adjacent
to Street Burger. FOF 5. Officer Buratti testified that as he
exited his vehicle, he heard "at least one and possibly two
voices yelling that this guy came from that truck."
As Officer Buratti approached the group of four
individuals, a man, later identified as Safadago, turned around,
looked at Officer Buratti, and started to run, barefoot, on the
sidewalk fronting Street Burger. Officer Buratti asked one of
the men in the group, later identified as Aaron Leikam (Leikam),
the owner of Street Burger, if Safadago was "the guy from [the]
truck," to which Leikam responded, "Yeah, I think so." As
Safadago ran away, Officer Buratti yelled for Safadago to stop,
but Safadago did not comply. FOFs 8, 9. Based on the
information from Leikam, Officer Buratti pursued Safadago,
chasing him to a pump station at the intersection of Haleilio
Road and Kuhio Highway, and stopping when Safadago ran up against
a fence. Officer Buratti repeatedly ordered Safadago to get down
on the ground. Officer Buratti asked Safadago, "Is that your
white truck?" Safadago denied owning the truck. When Officer
Buratti repeated his order for Safadago to get on the ground,
Safadago said, "Fuck you," and took a belligerent stance.
Officer Buratti again ordered Safadago to get on the ground.
When Safadago did not comply, Officer Buratti told Safadago that
he was under arrest, and tackled Safadago to the ground. When
Officer Shawn Hanna (Officer Hanna) arrived, he handcuffed

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Safadago, who was then placed in the back of a squad car while
the officers continued their investigation.
In its Order Denying the First Motion to Suppress filed
February 4, 2019, the Circuit Court concluded that pursuant to
HRS § 803-4,5 "Officer Buratti had a reasonable suspicion to
believe that the Defendant was the offender because the Defendant
was in the area where the crime was committed and was endeavoring
to escape."
"An appellate court reviews a ruling on a motion to
suppress de novo to determine whether the ruling was 'right' or
'wrong.'" State v. Weldon, 144 Hawai#i 522, 530, 445 P.3d 103,
111 (2019) (quoting Tominiko, 126 Hawai#i at 75, 266 P.3d at
1129). Conclusions of law are freely reviewable on appeal, under
the right/wrong standard. Birano v. State, 143 Hawai#i 163, 181,
426 P.3d 387, 405 (2018) (citations omitted). In reviewing
whether a seizure was unconstitutional, an appellate court must
determine "1) whether the person was seized; and 2) whether the
seizure was justified." Tominiko, 126 Hawai#i at 77, 266 P.3d at
1131 (citing State v. Dawson, 120 Hawai#i 363, 369, 205 P.3d 628,
634 (App. 2009)). "'[T]he police may temporarily detain an
individual if they have a reasonable suspicion based on specific
and articulable facts that criminal activity is afoot.'" Id.
(quoting State v. Kearns, 75 Haw. 558, 569, 867 P.2d 903, 908
(1994)). "The ultimate test in these situations must be whether
from these facts, measured by an objective standard, a [person]

5
HRS § 803-4 (2014) provides for a warrantless arrest upon
reasonable suspicion:
Whenever a crime is committed, and the offenders are
unknown, and any person is found near the place where the
crime was committed, either endeavoring to conceal oneself,
or endeavoring to escape, or under such other circumstances
as to justify a reasonable suspicion of the person being the
offender, the person may be arrested without warrant.

See also State v. Keawe, 107 Hawai#i 1, 5-7, 108 P.3d 304, 308-10 (2005)
(relying on HRS § 803-4 to provide context to the HRS § 803-5 warrantless
arrests exception, which allows "warrantless arrests where the police observe
a crime in progress or have probable cause to believe a crime has just
occurred," and recognizing that HRS § 803-4 enables an HRS § 803-5 warrantless
arrest when a crime is in progress, or has just occurred, and an individual is
found hiding near a crime scene.).

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of reasonable caution would be warranted in believing that
criminal activity was afoot and that the action taken was
appropriate." Id. at 78, 266 P.3d at 1132 (emphasis and
citations omitted). Based on the totality of circumstances, the
detaining officers "must have a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.'" Id. (emphasis omitted) (quoting State v. Koanui, 3
Haw. App. 255, 258, 649 P.2d 385, 387 (1982)).
Here, the record reflects that Officer Buratti had a
reasonable suspicion to detain Safadago based on specific and
articulable facts that Safadago came from a truck involved in a
fatal traffic collision and that he had left the scene. See
Tominiko, 126 Hawai#i at 77-78, 266 P.3d at 1131-32. These
specific facts included: the traffic collision, another vehicle
reportedly involved but no longer at the scene of the collision,
the discovery of the truck, the argument at the truck with
yelling that a male had come from the truck, Safadago then
fleeing from Officer Buratti, Leikam's response that he thought
Safadago came from the truck. Viewed in totality, these facts
constituted reasonable suspicion to justify Officer Buratti's
seizure of Safadago. See id.
"[F]light from the police is a factor which may support
a finding of probable cause." State v. Melear, 63 Haw. 488, 494,
630 P.2d 619, 625 (1981). HRS § 803-4, which the Circuit Court
applied, also provides for the warrantless arrest of a person
"found near the place where the crime was committed" who is
"endeavoring to escape," in situations where the "offenders are
unknown." See Keawe, 107 Hawai#i at 5-7, 108 P.3d at 308-10.
Here, the officer had information that Safadago was associated
with a vehicle that had left the scene of a collision, Safadago
ran from the officer, and also failed to stop despite multiple
instructions to do so. Safadago also resisted Officer Buratti's
repeated orders to get on the ground and took a belligerent
physical stance. Safadago's flight from Officer Buratti, in
addition to the other circumstances discussed supra, which
justified the seizure of Safadago, also supported the warrantless

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arrest under HRS § 803-4. See Melear, 63 Haw. at 494, 630 P.2d
at 625. We conclude that the Circuit Court did not err in
denying the First Motion to Suppress. See Weldon, 144 Hawai#i at
530, 445 P.3d at 111.
The Second Motion to Suppress was properly denied.
Safadago contends that the Circuit Court erred in
denying Safadago's Second Motion to Suppress because Search
Warrants P-17-53 and P-17-56, which led to the securing of
Safadago's blood and DNA, did not constitute probable cause
because the officers "fabricate[d] and falsif[ied] circumstances"
in their affidavits supporting the warrants. Specifically,
Safadago claims that the officers erroneously stated that
Safadago was identified by one of the bystanders as the driver of
the truck, and that because of this misstatement, the remainder
of the affidavits could not support a finding of probable cause.
KPD Officer Joseph Himongala's (Officer Himongala)
affidavit in support of search warrant P-17-53 requesting a blood
draw of Safadago, stated:

Officer Michael BURATTI arrived at the scene and parked his
marked patrol vehicle in front of the suspect's vehicle.
As he got out of his vehicle, a verbal argument caught his
attention in front of the JC Flower Store. Officer Michael
BURATTI observed a total of four people in front of the
stated store. As Officer Michael BURATTI approached them,
they identified one of the subjects that were with them as
the driver of the vehicle KBJ-403. As Officer Michael
BURATTI attempted to make contact with the driver (suspect),
he began to run towards the Shell Gas Station. Officer
Michael BURATTI chased the suspect and apprehended him at
the Shell Gas Station.

. . . .
Your affiant arrived at the scene and inspected the
suspect's vehicle and made contact with Cody SAFADAGO.
Your affiant observed a blood stain on the carpet located
on the right side of the gas pedal. Your affiant also
observed a blood stain on the driver's side door panel.
The suspect's vehicle's steering wheel airbag had been
deployed. Cody SAFADAGO sustained cuts on both legs and
they were bleeding. Cody SAFADAGO also has redness on both
of his arms. Based on your affiant's training and
experience, Cody SAFADAGO's injuries were consistent with
the evidence observed in the vehicle KBJ-403. While your
affiant was in the process of obtaining the telephonic
search warrant, your affiant learned that the victim later
died at Wilcox Memorial Hospital.

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(Emphases added).
At the hearing on the motion, Officer Himongala
testified that he took Safadago outside of the patrol vehicle to
examine Safadago's injuries on his body to determine if the
injuries were consistent with the damage within the truck.
Officer Himongala observed that Safadago had redness on his arms,
bleeding on his legs, and bleeding on his face; the blood on
Safadago was consistent with a fresh injury. When Officer
Himongala inspected the truck, he observed bloodstains on the
floor of the truck, next to the gas pedal, and on the driver
door. The truck sustained damage to the bottom dashboard, and
the firewall was pushed in towards the driver's side of the
truck. Based on what he observed, Officer Himongala determined
that Safadago's injuries were consistent with the damage to the
truck and the bloodstains inside the truck.
Officer Himongala did not include any information of
Safadago being taken down and arrested by Officer Buratti in the
affidavit, because Officer Himongala felt those facts were
irrelevant to include in the warrant. Officer Himongala
testified that at the scene of the collision, Officer Buratti
told Officer Himongala that "nobody . . . can place [Safadago]
inside the [truck]." While writing up the warrant, Officer
Himongala contacted Officer Buratti via telephone to verify that
the witness (Leikam) identified Safadago as the driver of the
truck. Officer Himongala testified that there was a
misunderstanding between him and Officer Buratti over whether
Leikam identified Safadago as the driver of the vehicle.
Officer Hanna's affidavit in support of search warrant
P-17-56, requesting a buccal swab of Safadago's saliva for DNA,
stated:

! Officer M. Burratti had apprehended a male subject,
Cody SAFADAGO, . . . who was identified as the
operator of UNIT 01.
. . . .

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Based on initial investigation, your affiant concluded the
following:
! Prior to the collision, UNIT 01 was southbound on
Kuhio Hwy and UNIT 02 was northbound.
! UNIT 01 crossed the double solid yellow line and
struck UNIT 02 head on, off center to the driver side
of each.
! UNIT 02 was spun around and came to a stop in the
northbound lane facing south.

! UNIT 01 continued on Kuhio Hwy with a damaged driver
front wheel which became detached and caused the
vehicle to slide to a stop at the Lanikai junction.

! Cody SAFADAGO was the operator of UNIT 01.
! SAFADAGO's injuries were consistent with having
operated UNIT 01 at the time of the collision.

! There were blood spots within UNIT 01 corresponding to
SAFADAGO's injuries and the airbag deployment
corresponded to marks on his forearms.

! Kayla HUDDY-LEMN was the operator of UNIT 02
! HUDDY-LEMN was injured and died as a result of this
collision.
! There were no other occupants in either vehicle at the
time of the collision.

(Emphases added). Officer Hanna's affidavit requested a DNA
sample from Safadago to compare it to the "DNA profiles obtained
from the evidence within UNIT 01 to determine if SAFADAGO'S DNA
is present inside UNIT 01." An attachment accompanying Officer
Hanna's affidavit also described Officer Hanna's extensive
training and experience in the investigation of fatal and non-
fatal traffic collisions, and his evidence-gathering and crime
scene processing experience.
Officer Hanna testified that when he first approached
the scene, Officer Buratti was on top of Safadago, who was pinned
on the ground, near the pump station. Officer Hanna assisted
with the arrest by handcuffing and getting Safadago off the
ground and escorting him to another officer's vehicle. Officer
Buratti informed Officer Hanna that Officer Buratti did not have
an eyewitness to identify the driver of the truck.
Officer Hanna testified that he, his sergeant, and
Officer Himongala conducted an investigation of the truck by

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looking through the driver's side door, which was ajar. Blood
was on the carpet and on the center console on the driver's side
compartment. Officer Hanna noted Safadago's injuries, which
consisted of scuffs on the inside of his forearms indicative of a
front air bag deployment; minor cuts under his knees; leg
compression lacerations; a cut or bruising above his eyes.
Officer Hanna, the sergeant, and Officer Himongala discussed the
injuries to Safadago that would indicate that he was the driver,
including the air bag abrasions and the cuts under Safadago's
knees as being consistent with the damage to the truck. Officer
Himongala was then instructed to obtain a search warrant for the
blood draw of Safadago, and Officer Hanna obtained the search
warrant for the buccal swab of Safadago's saliva for DNA.
In its Order Denying the Second Motion to Suppress
filed February 4, 2019, in addition to the factual findings supra
regarding Safadago being identified as having come from the truck
involved in the collision, the Circuit Court concluded that:

11. The police determined that the Defendant's
injuries were consistent with having been the driver of the
vehicle in question.

12. There was sufficient probable cause to believe
that the Defendant was the driver of the vehicle in
question.

13. This probable cause was sufficient to justify the
issuance of Search Warrant No. P-17-53 by Officer Himongala
and Search Warrant No. P-17-56 by Officer Hanna.

The Circuit Court's conclusions relied upon the police
determination that Safadago's injuries "were consistent with
having been the driver" of the truck, for its probable cause
determination.
An appellate court reviews "'the determination of
probable cause for the issuance of a search warrant' under the de
novo standard of review." State v. Quiday, 138 Hawai#i 124, 127,
377 P.3d 65, 68 (App. 2016) (quoting State v. Detroy, 102 Hawai#i
13, 18, 72 P.3d 485, 490 (2003)). A misstatement of fact will
not automatically render a search warrant affidavit insufficient

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to establish probable cause, if the remainder of the affidavit is
still sufficient to establish probable cause. State v. Sepa, 72
Haw. 141, 144, 808 P.2d 848, 850 (1991).6

An affidavit which misstates material facts hinders the
judicial officer's inference-drawing powers and increases
the likelihood that privacy will be invaded without probable
cause. Therefore, once a defendant establishes that an
affidavit supporting a search warrant contains material
misstatements of fact, the reviewing court must determine
whether the affidavit's content, with the false material
omitted, is sufficient to establish probable cause.

Id. (citations omitted). Further, "[w]here the facts and
reasonable inferences from those facts are capable of supporting
a finding of probable cause, the district court's decision to
issue a search warrant will be upheld even though other
inferences from those facts may support a different conclusion."
State v. Brighter, 63 Haw. 95, 101, 621 P.2d 374, 379 (1980)
(citing State v. Yaw, 58 Haw. 485, 491, 572 P.2d 856, 860
(1977)).
Here, the misstatement in Officer Himongala's affidavit
–- that Safadago had been identified as the driver -- did not
render the entire affidavit incapable of establishing probable
cause. If this misstatement is omitted, the remainder of Officer
Himongala's affidavit –- describing his observations of
Safadago's injuries as consistent with the blood stains in the
truck and the deployed steering wheel airbag -- was sufficient to
establish probable cause. See Sepa, 72 Haw. at 144, 808 P.2d at
850; Brighter, 63 Haw. at 101, 621 P.2d at 379.
Similarly, with regard to Officer Hanna's affidavit,
the misstatement that Safadago "was the operator" of Unit 01, did
not render the entire affidavit incapable of establishing
probable cause. If this misstatement is omitted, the remainder
of Officer Hanna's affidavit -- which describes the collision

6
In Sepa, the supreme court omitted misstated facts regarding a
narcotic dog's sniff test alert of a mail parcel, and determined that the
remainder of the search warrant affidavit did not establish probable cause
because all that remained in the affidavit were the dimensions of the parcel
and the qualifications of the narcotic dog and its police officer handler. 72
Haw. at 144, 808 P.2d at 850.

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scene, the placement of the truck and the Mazda, how the head-on
collision occurred, and the officer's observations of the truck
"blood spots" and airbag deployment corresponding to Safadago's
injuries -- was sufficient to establish probable cause. See
Sepa, 72 Haw. at 144, 808 P.2d at 850; Brighter, 63 Haw. at 101,
621 P.2d at 379.
At a suppression hearing, the trial court, as fact-
finder, is to "assess credibility of witnesses . . . and to
resolve all questions of fact." State v. Nelson, 69 Haw. 461,
468-69, 748 P.2d 365, 370 (quoting Lono v. State, 63 Haw. 470,
473, 629 P.2d 630, 633 (1981)). "The [court as] trier of fact
may draw all reasonable and legitimate inferences and deductions
from the evidence adduced . . ., and findings of the trial court
will not be disturbed unless clearly erroneous." Id. at 469, 748
P.2d at 370 (internal quotation marks and citation omitted). The
Circuit Court's COL 11, that the "police determined that the
Defendant's injuries were consistent with having been the driver
of the vehicle in question," is actually a finding of fact; we
conclude that this finding was supported by substantial evidence
and not clearly erroneous. See Birano, 143 Hawai#i at 181, 426
P.3d at 405 (reviewing factual findings under clearly erroneous
standard). The Circuit Court's subsequent conclusions in COLs 12
and 13, concluding that there was thus "sufficient probable cause
to believe that Defendant was the driver of the vehicle in
question" and that the search warrants were justified, were not
erroneous. See Sepa, 72 Haw. at 144, 808 P.2d at 850; Brighter,
63 Haw. at 101, 621 P.2d at 379; Birano, 143 Hawai#i at 181, 426
P.3d at 405. We conclude that the Circuit Court did not err in
denying the Second Motion to Suppress. See Weldon, 144 Hawai#i
at 530, 445 P.3d at 111.
The Motions to Dismiss Indictment were properly denied.

Safadago contends that the Circuit Court abused its
discretion in denying (1) Safadago's First Motion to Dismiss
Indictment, and (2) Second Motion to Dismiss Indictment.

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A motion to dismiss indictment is reviewed on appeal
for an abuse of discretion. State v. Pitts, 146 Hawai#i 120,
129, 456 P.3d 484, 493 (2019) (quoting State v. Akau, 118 Hawai#i
44, 51, 185 P.3d 229, 236 (2008)). A grand jury proceeding "'is
an ex parte investigation to determine whether a crime has been
committed and whether criminal proceedings should be instituted
against any person.'" State v. O'Daniel, 62 Haw. 518, 520, 616
P.2d 1383, 1386 (1980) (quoting State v. Bell, 60 Haw. 241, 244,
589 P.2d 517, 519 (1978)). "The prosecutor has wide discretion
in selecting and presenting evidence before the grand jury." Id.
(citations omitted). "'[W]here evidence of a clearly exculpatory
nature is known to the prosecution, such evidence must be
presented to the grand jury.'" Bell, 60 Haw. at 245, 589 P.2d at
520; Hawai#i Rules of Penal Procedure Rule 6(f) ("[E]vidence of a
clearly exculpatory nature known to the prosecution shall be
disclosed to the grand jury."). However, "the prosecution is not
required to present all exculpatory evidence to the grand jury"
and has "considerable latitude in determining whether to present
evidence of an arguably exculpatory nature to the grand jury."
Bell, 60 Haw. at 246, 589 P.2d at 520-21.
1. First Motion to Dismiss Indictment
With regard to the First Motion to Dismiss Indictment,
the Circuit Court made the following Conclusions of Law in its
order denying the motion:

9. The statement by the "Unnamed Witness," [Leikam]
although hearsay under Hawaii Rules of Evidence
(hereinafter "HRE") Rule 801, falls within the "State
of Mind" exception under HRE Rule 803(b)(3).

10. The statement by Unnamed Witness was presented
because it informed the Grand Jury as to why Officer
Buratti gave chase to the Defendant.
11. Excessive hearsay was not presented to the Grand
Jury sufficient to dismiss the Indictment.

Safadago does not challenge COL 9 regarding the
admission of the "unnamed" witness (Leikam) hearsay statement at
the grand jury hearing under a hearsay exception. Instead,
Safadago argues that Leikam's statement

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was not enough to furnish probable cause for [Safadago's]
arrest, and therefore evidence of Officer Hanna's supposed
observations of injuries of [Safadago], which led him to
conclude on the spot that they were sustained specifically
from having driven the white truck during the collision,
should have been suppressed and therefore not considered at
all in sustaining the Grand Jury Indictment. Combined with
the lack of probable cause supporting the issuance of the
two search warrants, there is no possible way the Grand Jury
could have returned a true bill . . . .

The above is the extent of Safadago's argument regarding the
denial of First Motion to Suppress in the Opening Brief.
Officer Hanna's observations of Safadago's injuries
were not subject to suppression and were accordingly presented to
the grand jury. We have already determined supra, that the
Circuit Court's order concluding there was sufficient probable
cause to support the issuance of the two search warrants and
denying Safadago's motion to suppress, was not erroneous.
Accordingly, Safadago's argument above, as we discern it, is
without merit. We conclude that the Circuit Court did not abuse
its discretion in denying Safadago's First Motion to Dismiss
Indictment. See Pitts, 146 Hawai#i at 129, 456 P.3d at 493.
2. Second Motion to Dismiss Indictment
With regard to the Second Motion to Dismiss Indictment,
Safadago argues that the Circuit Court abused its discretion in
not dismissing the indictment despite the Circuit Court finding
that the State did not put on evidence that: (1) Safadago was not
seen in the truck; (2) that four individuals were seen standing
outside of the truck after the collision; and (3) the four
individuals were not seen in the truck. Safadago argues that
these facts were clearly exculpatory because they negated
identification of Safadago as the driver of the truck, and "such
evidence, if presented could have resulted in a no bill on the
charges."
The Circuit Court denied the Second Motion to Dismiss
the Indictment, specifically finding and concluding that:

[Findings of Fact]
2. During the Grand Jury proceedings, the State
of Hawaii did not put on evidence . . . that the

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Defendant was not seen in the [truck] or that four
individuals were seen standing outside of the truck
after the collision.

3. The State of Hawaii did not put on evidence
that the other four individuals were not seen in
the truck.

4. The State of Hawaii did put on evidence that
the Defendant was seen running from the scene of
the collision.
5. The State of Hawaii did put on evidence that
the Defendant's injuries were consistent with
having been the driver of the vehicle in question.
. . . .
[Conclusions of Law]

8. The State of Hawaii did not improperly
mislead the Grand Jury.

9. The evidence that the Defendant was not
seen driving the vehicle in question was not
clearly exculpatory.

10. The evidence that there were four
individuals standing outside of the vehicle in
question after the collision, also not seen
driving the vehicle in question, was not clearly
exculpatory evidence.
11. The State of Hawaii did not fail to present
clearly exculpatory evidence.

Evidence that is "clearly" exculpatory is evidence that
"clearly would have negated guilt" or would "undermine the
authority of the grand jury to act at all." State v. Wong, 97
Hawai#i 512, 526, 40 P.3d 914, 928 (2002) (quoting Bell, 60 Haw.
at 247, 589 P.2d at 521). Here, the evidence that Safadago was
not seen inside the truck, and that four others were standing
outside of the truck, does not clearly negate Safadago's guilt.
See id. Safadago's argument itself acknowledges that this
evidence shows only "the possibility of someone else, other than
[Safadago]," being the driver.7 (Emphasis added). The Circuit

7
In the Opening Brief, Safadago argues:
The fact that the witness actually did not see [Safadago]
behind the wheel, or even in the vehicle should have been
presented. Moreover, the fact that there was the
possibility of someone else, other than [Safadago], driving
the vehicle should also have been presented because it
(continued...)

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Court's conclusions in this regard were not wrong, and its denial
of the Second Motion to Dismiss Indictment was not an abuse of
discretion. See Pitts, 146 Hawai#i at 129, 456 P.3d at 493;
Birano, 143 Hawai#i at 181, 426 P.3d at 405.
For the foregoing reasons, the Judgment of Conviction
and Sentence; Notice of Entry, filed on January 27, 2020 by the
Circuit Court of the Fifth Circuit, is affirmed.
DATED: Honolulu, Hawai#i, February 23, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Rosa Flores Chief Judge
(Law Office of Rosa Flores)
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Tracy Murakami
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
County of Kaua#i Associate Judge
for Plaintiff-Appellee

7
(...continued)
negated identification, which is a material element of the
offenses charged. And, such evidence, if presented could
have resulted in a no bill on the charges.
(Emphasis added).

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